Lawyers Manual - Unified Court System

232 Emily Ruben
Also, since domestic violence is a factor to be considered in custody
determinations, it may be in the interest of the battered spouse to have the same
judge adjudicate all orders of protection and custody issues. Unlike a request for
an order of protection, which technically can be made in either Family Court or
Supreme Court even after the commencement of a divorce action, a custody
petition brought in Family Court after the commencement of a divorce action
will be dismissed. 19 Some Family Court judges will routinely dismiss custody
proceedings even if they were commenced in Family Court before the
commencement of a divorce action. Accordingly, when a divorce action has
been commenced in Supreme Court and custody is disputed, an order of
protection should be pursued in that forum as well.
Historically, practitioners have preferred Family Court orders of protection
over Supreme Court orders because Family Court orders were more easily
recognized by the police and were routinely submitted to the statewide registry
while Supreme Court orders were not. This should no longer be the case.
Pursuant to Domestic Relations Law § 240(3)(d), the chief administrator of the
court has promulgated uniform temporary order of protection and final order of
protection forms to be used in Supreme Court. 20 These forms were designed to
be compatible with the computerized statewide registry, and Supreme Court
participation in the registry program is mandatory. When a Supreme Court
justice grants a temporary or final order of protection, the attorney representing
the victim of domestic violence should provide the court with a completed form
for signature to ensure that the proper form is used and to make it more likely
that the order will find its way to the state registry.
Another reason that Family Court orders of protection seemed more
desirable was that police officers could serve them and the police officer’s
affirmed certification regarding the service was sufficient proof of service.
However, since 1996, Domestic Relations Law § 240(3-a) has authorized the
same type of service of Supreme Court orders of protection that have been
issued “on default.” Domestic Relations Law § 240(3-a) also allows “any
associated papers . . . including the summons and petition or complaint” to be
served by the police at the same time. The officer’s affirmed certification of
service is sufficient proof of service. When preparing an order to show cause for
an order of protection in Supreme Court, an attorney should request that the
court order service pursuant to Domestic Relations Law § 240(3-a). This should
allow for the same simplified and safe service and notice as provided by the
Family Court Act.